Intro_continental_legal_science [Unlocked]
.pdfcapacity for expansion since the being that possesses it is entitled to assert itself over the cosmos and the surrounding culture. The will, in effect, becomes the essential character of the human subject, and the guarantor of each person's liberty. This liberty is construed as dominium; the intrasubjective realm is governed by a series of rights of property.
If the reader is feeling impatient with the apparently generic arguments put forward so far, I would reiterate that it is in this nexus of fourteenth-century anthropological developments, which stand in polemical contrast to various medieval certainties, that we can grasp the origin of the individualism which will dominate modernity absolutely. These anthropological considerations allow us to capture the first instance of that typifying characteristic of modernity: the mingling of being and having, of me and mine. The act of possession is hereafter seen as contributing to the very being of the human subject. We shall deal with these developments in greater depth below.
Another probable objection to what I have argued so far, and it is a legitimate one, is that I have dealt with historical phenomena in the areas of agriculture, demographics and health which contributed to the fourteenth century's structural crisis, and with abstract philosophical choices contributing to an anthropological shift, but I have not yet dealt with the law, or even with its close neighbour, politics. To borrow from Hegel a figure of speech that I have always thought very felicitous and apply it to our field, I would reply that the law is like the owl, the bird of Athena, because it does not seek out the midday sun but waits until the heated business of the day is over to spread its wings. The law, as I have argued many times, is a reality of the most rooted kind: it lies in the most profound layers of civilization, where the very values of society are found. The law emerges into the sun only when problems on the social, economic and political surface become revolutions that reach down to the deepest, most radical level.
The period we are examining is a borderland between two experiences of the law; let us therefore reiterate here two considerations
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that are relevant to our understanding of the historical phenomena. Firstly, an experience of the law means a typical way of conceiving of, feeling and living the law - it is not limited or limitable to the laws passed by a monarch, or the commands made by members of a police force; it is, rather, a cultural reality. The medieval experience of the law is not an inconsistent but harmless period of transition: it lasted for many centuries and penetrated the consciousness of medieval man. The medieval experience of the law slowly succeeded in changing people's values by inculcating its understanding of anthropology. The structural crisis of the fourteenth century was a historically propitious moment, which favoured a recasting of the collective consciousness, a renewal of mankind's vision of its place in the cosmos and in society. This renewal could not but begin with anthropology: the reicentric anthropology of the Middle Ages had to be replaced by one that was anthropocentric, and this is what the voluntaristic currents in philosophy and theology began to propound in the fourteenth century. The law followed later, in perfect harmony, once it had absorbed and assimilated the results of these currents.
Now we are beginning to examine European legal modernity, I should warn the reader that the quest to found a new legal order lasted some centuries; the slow but progressive construction of a fully realized model ended in a completely renewed legal order only at the end of the eighteenth century, when the reforming winds of the French Revolution cleared away the detritus of the old era from the streets of Paris and continental Europe. For reasons of inertia, that socio-political order which we call by its French name, Ancien Regime - that is the French state up to 1789 – retained many relics of medieval law, which intermingled with the increasing numbers of juridical innovations. A completely new legal order, however, only appears after the great revolution.
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The School of commentators and mos italicus.
Introducing the school.
Lopez P. Comparative Law in a Changing World. p. 56.
The Glossators were succeeded in <the second half of the> 13th century by scholars known as the Commentators (or post-Glossators). Although it is not always easy to distinguish where the late Glossators ended and the early Commentators began, it is generally correct to say that the Commentators could be identified by their systematic commentaries on, and synthesis of, the law.
Van Caenegem R.C. An historical introduction to private law, p. 52, 54.
Nowadays the jurists of this school are referred to as 'commentators'; previously they were known as 'post-glossators', owing to the fact that they taught after the glossators and in a sense continued their work. Yet that name wrongly implies that the new school amounted to no more than an unoriginal continuation of the work of its precursor. The name 'commentators' emphasizes that these jurists wrote important commentaries on the Corpus iuris as a whole. In addition, they wrote numerous consilia or legal opinions, delivered on actual questions on which they had been consulted: hence the name consiliatores has also been proposed to describe this school. The zenith of the School of Commentators was in the fourteenth and fifteenth centuries; its authors too were mostly Italian…
The School of Commentators produced many authors and an impressive volume of their work survives. Mostly Italians, they maintained the traditional pre-eminence of their nation in the area of legal science. French jurists, however, the best known of whom are Jacques de Revigny (d. 1296) and Pierre de Belleperche (d. 1308), had been the precursors of the Italian commentators in the second half of the thirteenth century. Their doctrines were diffused in Italy by Cynus of Pistoia (d. 1336), the first great author of the School of Commentators.
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After him the school reached its scholarly summit with Bartolus of Saxoferrato (d. 1357) and Baldus de Ubaldis (d. 1400) <in the name of the great Bartolus the commentators of the 15th and 16th centuries were sometimes called the Bartolists>. The tradition was continued in the fifteenth century by many other Italian jurists, such as Paulus de Castro (d. 1441) and Jason de Mayno (d. 1519). Italian pre-eminence was such that this school was known as the mos italicus iuris docendi ('Italian method of teaching law'), as opposed to the French school or mos gallicus, by which is meant the approach of the sixteenth-century humanists…
Robinson O.F. European legal history: sources and institutions, p. 59–60.
No exact date can be assigned for the completion of the Accursian Gloss, but it is clear that by the middle of the thirteenth century it was substantially in the form which has come down to us, and in the process of being accepted as the standard companion to the Corpus Iuris Civilis. Scholars used to refer, without differentiation, to all the writers who came after the Gloss, as whose work continued through to the sixteenth century… as Post-Glossators, for the simple fact that their work assumes the existence of the Gloss. Modern usage, however, is attached particularly to Italian writers of the later thirteenth century…. The jurists of the fourteenth century onward are usually called Commentators, to indicate that they were not simply the successors of the Glossators but had their own individuality and a positive contribution to make to legal development.
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Common to all these <medieval> universities, including Bologna, was an intensified interest in the practical application of Roman law, and especially in its adaptation to the problems posed by new situations such as the existence of numerous independent jurisdictions and legal systems.
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The analysed sources of law
commentators expanded the pool of their legal sources. In addition to the text of ius commune:
–the sources of Roman law (= libri legales)
–the Gloss of Accursius
the commentators paid considerable attention to the sources of ius proprium:
–statutes of the city states;
–rural, manorial and feudal customs,
–statutes of various local rulers.
Robinson O.F. European legal history: sources and institutions,
p. 61.
The Commentators… dealt with essentially the same material as the Glossators, that is, the Corpus Iuris Civilis in its medieval form which included the Books of the <Feudal Customs> <i.e. Libri feudorum>, but they paid more attention to special legislation, such as that of the Italian city states <and local customs in other regions of Europe being influenced by the reception of Roman law>.
The methods
Van Caenegem R.C. An historical introduction to private law, p.
52.
Their aims and methods were these.
The Corpus iuris and the Gloss formed the basis of their work. 84
The importance accorded by them to the Gloss was such that it sometimes eclipsed the original texts. The commentators' method was strongly influenced by scholasticism, which had reached its high point in the thirteenth century, and which had imbued subsequent scholarly thought with Aristotelian logic. In particular the commentators adopted the system of argumentation, disputation and polemic typical of scholasticism. They also took up its excesses, and this is the origin of their interminable discussions on trivialities, their excessively subtle analyses of authorities, and their exaggerated reliance on the technique of successive distinctions. The work of the commentators is essentially academic, and this is to be associated largely with university teaching, which was then undergoing a major expansion <in Italy, France, Spain>. The law conceived in the law faculties was inevitably a learned and academic law, a professors' law.
Nonetheless, the School of Commentators differs from the glossators in that its authors took a greater interest in the law outside the Corpus iuris civilis, and in their scholarly work even paid attention to the social realities of the time. Thus, the commentators had firm views on the sources of non-learned law too, such as customs and ordinances.
… the commentators also appreciated that the learned law would play only a trifling part if it remained confined to the narrow artificial context of the Corpus iuris and the ancient world. The commentators adapted the learned law to the needs of their time; they worked out doctrines of practical value; they allowed the learned law to complement and enrich the other sources of law without eliminating them…
Learned law could also provide a method and principles suitable for the scholarly study of non-Roman laws. Here the distinction made by the commentators between ius commune (the 'common', cosmopolitan and learned law of the whole of the West) and ius proprium (the law 'proper' or particular to a country, region, town or corporation) took on a major importance. Although the commentators recognized and respected the significance of ius proprium, they urged
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that it should be studied and that gaps in it should be filled by the learned law and its method.
Methods of teaching law
Robinson O.F. European legal history: sources and institutions,
p.61–62.
…it is not surprising that their teaching methods were similar to those of the Glossators. The emphasis was on lectures on a text or texts of the Corpus (or other book being read) including the gloss attached <e.g. Gloss of Accursius to the Corpus>, and they published exegetical material based on this teaching. Lecturae (Lectures) were indeed often simply reports of actual lectures; it was quite common for these to be produced with the approval of the lecturer, and in these cases the text would probably be revised by the lecturer before publication. Sometimes, however, it is clear that there was no revision, as when the reporter says that he missed something because of the noise made by the students. In other cases what we have may be lecture notes prepared by the lecturer….
The format of the lectures follows the same general pattern as is found among the Glossators. For example, Cinus, commenting on D. 12.1.40, says: ‘First I shall divide this fragment into its parts and set out the case, and I shall deal with textual questions. In the second place, I shall draw attention to contradictory passages and solve the contradictions. In the third place, I shall formulate certain questions and add the solutions to them. In the fourth and last place, I shall assemble certain arguments useful for this purpose.’
However, it was increasingly common to find that the regular lectures did not pay equal attention to all texts. The lecturer might even omit comment on some texts altogether, but this was not always allowed. The statutes of the University of Bologna of 1317 laid down that the doctors were not to pass over any decretal or fragment or
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paragraph. They also continued the system which required the lecturer to cover so much over each fortnight or month, under penalty of a fine… But even without any total omission, the concentration on some rather than others led to certain texts being used as the starting point for long treatises. For example, C. 1.1.1 became the normal peg on which to hang discussions of the effect of local legislation and indeed to develop international private law.
Where there were differences of opinion or apparent contradictions in the texts, the list of oppositiones became increasingly lengthy as the number of views to be explained and the list of supporters of each grew. When these lists are looked at carefully it becomes apparent that there was some tendency simply to lift the list from a predecessor and to add the latest views, without any weeding out of earlier ones or checking; one finds lists in which people are given as supporters of an opinion which it is certain they did not hold. Again, the list of questions dealt with tended to grow, whether they were related to interpretation or to doctrine or (as was increasingly common) to the actual application of the law. One can see the lecturer’s abiding tendency to increase the syllabus for fear of discarding something of value.
In addition to the regular exegesis of the particular part of the Corpus on which the commentary was being given, there were special lectures on particular texts or particular problems; these… were now called repetitiones. …
The restrictions of the methodology used by the commentators.
The Commentators, much like the Glossators, revered the authoritative legal texts.
Robinson O.F. European legal history: sources and institutions,
p. 70.
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Bartolus once said: ‘We lawyers blush to speak without reference to an authority’, and the story is told, that, on occasion, having given his opinion on a case put to him, he would go to a friend who had a better memory to provide him with the relevant texts to justify the opinion. This characteristic, however, is both a strength and a weakness in lawyers of any age.
In their pursuit of practical application of the Roman law sources, the Commentators had been drifting further and further away from the authentic meaning of the legal sources. The focus of their attention shifted from the Corpus Iuris to the Gloss of Accursius and even to the commentaries of the well-known scholars.
Their priority was not the authentic true meaning of the text but the good arguments in favour of their opinions. This preference was reinforced by a considerable lack of historical consciousness.
(In the 15th and 16th centuries the humanists highlighted much of these drawbacks, see below Topic 5).
The ideological assumptions explain, to a great extent, why the commentators were so unscrupulous in finding the ‘right’ (or biased) meaning in the legal sources.
Crooked ways to interpret the sources
Robinson O.F. European legal history: sources and institutions, p. 69–70.
The Commentators were remarkably free in their application of the texts regardless of the original context. For example, from the fact that in Nov. 105 <i.e. Justinian’s Novel no. 105> the emperor was referred to as ‘living law’, it was argued that property could be transferred by the emperor without any physical delivery but by simple oral grant, because it is possible for a law to transfer property.
<Or> the famous text: ‘What touches all alike is to be 88
approved by all’, which was widely used as an argument for (relative) democracy in Church and state.
(см. 3.4.3)
The Commentators had no hesitation in applying a text to their own times, however anachronistic they might know its real meaning to be, if its use could be fruitful, as in equating an Italian city with a Roman municipium <a self-governed town subject to Rome>. Similarly, when they derived arguments from texts which had little or no relation to the current facts, they were not ignorantly distorting Roman law to fit their own times but deliberately adopting its principles as a source of ideas.
For example, in one of his opinions, Bartolus dealt with a case where a husband was seeking aliment (or maintenance) for his (second) wife from the children of the first marriage, to whom the property of his first wife had gone. The claim was denied on the basis of D. 13.6.18.2 which, talking about a slave who has been lent, states that the expense of feeding him, etc. falls by natural reason on the person who makes use of him. Conversely, Bartolus argued from texts on dotal expenses that, where a tenant claimed from his landlord the cost of clearing ditches on the land which he had leased, if this was a regular job then the tenant must pay, but of the clearing was something which was necessary only at considerable intervals then the obligation fell on the landlord. In yet another opinion, a stamped notarial document had been destroyed; the question was, need the copy of the document be stamped? Bartolus held that it need not, because it was a matter of good faith that the same thing be not claimed twice – a principle which applies rather to the law of contract that to stamp duties.
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<Also> the Commentators worked out the distinction between dominium directum (superior ownership) and dominium utile (‘extended ownership’ – in effect a share of ownership allowing use) to deal with cases as the feudal superior and vassal both holding in the same land an
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